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Protection of Tribal Land Implications of Trust Responsibility, Environmental Law and Environmental

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Title: Protection of Tribal Land Implications of Trust Responsibility, Environmental Law and Environmental


1
Protection of Tribal LandImplications of Trust
Responsibility, Environmental Law and
Environmental Justice
  • Brenda Brandon TOSNAC Coordinator
  • Martin Alexie HERS Research Assistant
  • Haskell Environmental Research Studies Center

2
STATUTES REGULATIONS
  • A statute is a type of law
  • they exist at the federal, state, county and
    local levels
  • federal statutes are written by Congress and
    signed by the President
  • Regulations support statutes
  • they are issued by governmental agencies to
    carry out the law
  • they are the details that state how a law will
    be implemented

3
EXECUTIVE ORDER
  • An Executive Order is an order issued by a
    governments chief executive
  • it is not a statute or regulation
  • it is not written or passed by a legislative body
  • it is intended to give attention to a certain law
    or body of laws directs federal agencies how to
    implement them
  • agencies to which an Executive Order applies have
    a legal and political obligation to fulfill the
    requirements of the order

4
Important Tribal Law Concepts
  • Treaties, and other Agreements (e.g. Executive
    Orders and Statutes)
  • Tribal Sovereignty, including Jurisdiction
  • Federal Trust Responsibility
  • Executive Order 13175 (2000)
    Consultation and Coordination With Indian Tribal
    Governments
  • Government-to-Government Relationship

5
Contemporary Trust Responsibility
  • Tribal Natural Resources
  • 20 known natural gas and oil reserves
  • 50 potential uranium and other mineral reserves
  • 30 coal reserves west of the Mississippi River
  • Fiduciary duties- limited trust implemented by
    BIA regulations
  • Timber
  • Leased energy resources
  • Leased mineral resources
  • Water resource management

6
History of Indian Mining Law
  • Indian Mineral Leasing Act (1891)
  • Required consent by Tribal leadership
  • Supreme Courts Lone Wolf Decision (1903)
  • Upheld congressional power to take land
  • Indian Mineral-Leasing Act (1938)
  • Restated Tribal consent to leases
  • Standardized leasing policies
  • Indian Termination Resolution (1953)
  • Individual management of Tribal resources

7
Tribal Control over Resources
  • Council of Energy Resource Tribes (CERT)
  • 26 Tribal governments (1975)
  • Assert control over their own resource and
    development objectives
  • Assess their own resources
  • Negotiate and renegotiate lease and contract
    terms
  • Build Tribal capacity through self-management of
    resources

8
Indian Mineral Development Act (1982)- Trust
Provisions
  • Liability
  • the United States shall not be liable for losses
    sustained by a tribe.
  • Supervision of Operations
  • the Secretary shall continue to have a trust
    obligation to insure the rights of a tribe or
    individual are protected.
  • Incorporates reference to
  • National Environmental Policy Act (1969)
  • Endangered Species Act (1973)
  • National Historic Preservation Act (1966)
  • Reflects Congressional intent to minimize
    adverse effects

9
3809 Mining Regulations (2001)
  • Bureau of Land Management
  • Provisions for protection of Federal Land
  • Public health
  • Public land resources
  • Environment
  • Responsible Mining
  • Require all mining operators to provide a
    financial guarantee that covers the estimated
    cost of reclamation (cleanup)

10
Case of the Kitty Litter Plant
  • Reno-Sparks Indian Colony and the Great Basin
    Mine Watch
  • Hungry Valley, Nevada
  • Chicago-based Oil-Dri Corporation claim to mine
    clay
  • Impact to air and water
  • Noise pollution, large truck traffic, visual
    degradation, night-time lights, and suburban
    sprawl

11
Executive Order 13007 Indian Sacred Sites (1996)
  • Accommodate access to sacred sites by Indian
    religious practitioners
  • Applies to Federally owned lands except Trust
    Lands
  • Protect the physical integrity of sacred sites
  • Complements other procedures regarding tribal
    life
  • Executive Directive on eagle feather use in the
    practice of the American Indian religion (1994)

12
Sacred Sites
  • Never has a Tribal Case been Upheld in Court of
    Law for Protection of Environment Established on
    grounds of Sacredness

13
President Clintons Executive Order 12898 (1994)
  • Foster non-discrimination (Environmental Justice)
  • in programs affecting health or environment
  • Encourage greater opportunities
  • for minority or low-income communities to
    participate in decisions
  • Created the Interagency Working Group on
  • Environmental Justice
  • Required federal agencies to do additional
  • research on environmental justice issues
  • Described how existing laws could be used to
    address environmental justice issues

14
Advancement of Environmental Justice
  • Environmental acts, rules, and regulations are
    influenced by Environmental Justice (EJ)
    guidelines within agencies
  • Environmental Justice guidelines and activities
    are laid in place over (superpose) Agency
    Environmental programs

15
EJ Issues Addressed in Permitting
  • Resource Conservation and Recovery Act
  • Hazardous Waste Treatment, Storage and Disposal
  • Clean Water Act
  • State Water Quality Standards
  • National Pollution Discharge Elimination System
    Permits
  • Section 404 of CWA- Army Corps of Engineers
  • Clean Air Act
  • New Source Review
  • Title V- permits from stationary sources
  • Tribal Air Rule (40 CFR Part 71)

16
Potential Environmental Justice Authorities
  • Superfund (composed of two authorities)
  • CERCLA (Comprehensive Environmental Response,
    Compensation and Liability Act)
  • SARA (Emergency Planning and Community Right to
    Know Act)
  • Safe Water Drinking Act
  • Toxic Substances Control Act
  • Federal Water Pollution Control Act
  • Federal Insecticide, Fungicide, and Rodenticide
    Act
  • Marine Protection, Research, and Sanctuaries Act
  • Endangered Species Act
  • National Environmental Policy Act

17
Interagency Federal Working Group on
Environmental Justice
  • Environmental Protection Agency
  • Office of Management and Budget
  • Office of Science and Technology Policy
  • Office of the Deputy Assistant to the President
    for Environmental Policy
  • Office of the Assistant to the President for
    Domestic Policy
  • National Economic Council
  • Council of Economic Advisers
  • and such other Government officials as the
    President may designate
  • Department of Defense
  • Department of Health and Human Services
  • Department of Housing and Urban Development
  • Department of Labor
  • Department of Agriculture
  • Department of Transportation
  • Department of Justice
  • Department of the Interior
  • Department of Commerce
  • Department of Energy

18
Environmental Justice
19
EJ
Clean Water Act
20
EJ
Clean Air Act
CWA
21
EJ
CAA
CWA
Resource Conservation and Recovery Act
22
EJ
CAA
CWA
Lead-Based Paint Reduction act
RCRA
23
EJ
CAA
CWA
RCRA
Lead Paint
Brownfields
24
EJ
CAA
CWA
RCRA
Lead Paint
Superfund
Brownfields
25
EJ
CAA
CWA
National Environmental Policy Act
RCRA
Lead Paint
Superfund
Brownfields
26
Environmental Impact to TribesCultural Risk
Considerations
  • Sustainability concerns
  • Human and Environmental Health
  • Natural and Cultural Resources
  • Social Enhancement and Economic Opportunity
  • Any proposed environmental project, contaminant
    concern or cleanup activity can impact any or all
    categories of cultural consideration

27
Tribal Cultural Risk Considerations in
Environmental Impact Assessment
EJ
Sustainability
Cultural Resources
Social Enhancement Economic Opportunity
Health Environment
28
Application of Cultural Risk Assessment and Risk
Management
  • Assess impact of proposed environmental action
  • Assess impact of environmental hazard
  • Develop risk reduction strategies
  • Contribute to development of Tribal Comprehensive
    Environmental Plan
  • Community involvement in environmental
    decision-making processes

29
Considerations of Tribal Empowerment
30
Tribal Case Study III
  • Fort Belknap Tribes
  • Harlem, Montana

31
Snake Butte Mountain Brownfields, Zortman
Landusky Mine Superfund
32
Influence of Contaminants on Tribal Cultural Risk
Concerns
  • Different contaminants are represented by
    brightly colored dots
  • Contaminants can impact any or all categories of
    cultural risk-
  • Sustainability concerns
  • Human and Environmental Health
  • Natural and Cultural Resources
  • Social Enhancement and Economic Opportunity

33
Fort Belknap Case
EJ
Brownfields- Snake Butte
34
EJ
Brownfields
35
EJ
Superfund- Zortman Landusky Mine
Brownfields
36
Multiple Contamination Concerns
  • Tribes can be impacted by a number of
    contaminated sites
  • Some sites have multiple contaminant concerns,
    indicated by small dots connected by lines
  • A particular contaminant source can influence
    multiple regulatory aspects, indicated by arrows
    connecting circles

37
EJ
Brownfields
Superfund
38
EJ
CWA
Brownfields
Superfund
39
Multi-Media and Multiple Source Contamination and
EJ Concerns
  • Involving multiple media, such as water and air,
    or air and sediment increases level of EJ
    concerns
  • Multiple contaminant sources can add to
    complexity of EJ concerns
  • Multiple environmental activities can have
    cumulative impact to the Realm of EJ the
    stacking affect

40
EJ
CWA
RCRA
Brownfields
Superfund
41
EJ
CWA
RCRA
Brownfields
Superfund
42
EJ
CWA
RCRA
NEPA
?
Brownfields
Superfund
43
Evaluation of Risk of EJ Concerns
  • EJ concerns increase as
  • number of contaminated sites increases
  • multi-media concerns increases
  • number of contaminants within each site increases
  • degree or seriousness of contaminant impact
    increases at each site
  • level of cultural impact increases overall

44
Gray Areas of Defining EJ
  • Any and all Tribal EJ issues become important in
    any environmental process, especially when
    multiple cultural resources or activities are
    impacted or potentially impacted
  • Tribal EJ issues are not always well defined, as
    social, cultural, spiritual components are not
    easily assessed and are rarely adequately
    considered during environmental processes

45
www.tosnac.org
  • Technical Outreach
  • Services for Native
  • American Communities
  • (TOSNAC)
  • BrendaBrandon_at_msn.com
  • Toll Free 1(866)880-2296
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